Proper service is a pre-condition to the exercise of a court’s jurisdiction. Non-service robs the court off its jurisdiction to hear and determine a suit. The essence of service is to give notice to the other party on whom service is to be effected, so that he might be aware of, and able to resist, if he may, that which is sought against him. Odutola v Kayode (1994) 2 NWLR (Pt. 324) 1 at 21 Paras D-E.
This article discusses the service of foreign court process in Nigeria and service of Nigerian court processes in foreign countries. The article will use the High Court of Lagos State Civil Procedure Rules 2012 as a point of reference.
In an increasing globalized world, there are situations where the subject matter of a suit is located in a different country. It is possible the act, obligation and deed sought to be construed or enforced took place in a foreign country. The need to serve a party in a foreign country might also arise where the relief sought is against a party resident outside the country.
The service of a foreign court process in Nigeria or in a foreign country is governed by the High court civil procedure rules of various states. Any proceedings conducted without proper service is void ab initio.
PROCEDURE FOR SERVICE OF FOREIGN COURT PROCESS IN NIGERIA (ORDER 8, RULE 5 OF LAGOS STATE HIGH COURT CIVIL PROCEDURE RULES 2012)
- The foreign court or tribunal sitting on a civil or commercial matter shall write a
letter to the Attorney General of Lagos State requesting that service be effected on any person named in the letter.
- Such letter and the processes if in a language other than English shall be accompanied by an English translation of the letter.
- Two copies each of the process in the original language and English language. • The Attorney General shall then forward the letter and process to the Chief Judge.
- The process would be assigned to a bailiff of the court who shall effect personal service.
- The bailiff will then file an affidavit of service or non-service in court.
- The affidavit of service as well as a certificate of service would be forwarded to the Attorney General.
PROCEDURE FOR SERVING NIGERIAN COURT PROCESS IN A FOREIGN COUNTRY (ORDER 8 RULE 3 OF LAGOS STATE HIGH COURT CIVIL PROCEDURE RULES 2012) (NO CONVENTION)
- The leave of court is sought to serve process outside jurisdiction.
- The process to be served shall be sealed with the seal of the court for service out of Nigeria, and shall be transmitted to the Solicitor General of the Federation by the Chief Registrar, together with a copy translated into the language of that country if not English.
- A request is made for its further transmission to the appropriate authority in that country. The request shall be in Form 7 with such modifications or variations as circumstances may require.
- A party wishing to serve a process under this rule shall file a praecipe in Form 8 with such modifications or variations as circumstances may require
- A certificate, declaration, affidavit or other notification of due service transmitted through diplomatic channels by a court or other appropriate authority of the foreign country, to the court, shall be deemed good and sufficient proof of service
- Where a certificate, declaration, affidavit or other notification transmitted as aforesaid states that efforts to serve a process have failed, a Judge may, on an exparte application, order substituted service whereupon the process and a copy as well as the order for substituted service shall be sealed and transmitted to the Solicitor General of the Federation together with request in Form 9 with such modifications or variations as circumstances may require.
However, a judge can grant an order for leave to serve by substituted service in a foreign country. (Order 8, Rule 8). In addition, irrespective of the procedure above, the court can grant an order to serve a process in a foreign country via courier (Order 8, Rule 3).
Service of court process on parties to a suit is a fundamental condition to be fulfilled. Any decision of a court, no matter how instructive without proper service, would be null and void. Parties need to ensure processes are properly filed.